Opinion

Deaguila, Enrique v. Pods Enterprises, LLC

  • 2021 TN WC 249
Court
Tennessee Court of Workers' Compensation Claims
Filed
Dec 8, 2021
Status
Published
On the bench
Brian K. Addington
Cited by
0 cases

The opinion

FILED

Dec 08, 2021

02:57 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT GRAY

ENRIQUE DEAGUILA, ) Docket No.: 2020-02-0367

Employee, )

v. )

PODS ENTERPRISES, LLC, ) State File No.: 35113-2019

Employer, )

And )

LIBERTY MUTUAL INSURANCE ) Judge Brian K. Addington

CORPORATION, )

Carrier. )

EXPEDITED HEARING ORDER

The Court held an expedited hearing on December 1, 2021, on Enrique Deaguila’s

request for additional medical and temporary disability benefits, and attorney fees. PODS

disputed Mr. Deaguila’s entitlement to additional benefits. The Court finds that Mr.

Deaguila would likely succeed in part at a hearing on the merits and is entitled to some of

the requested benefits, but not attorney fees.

History of Claim

Mr. Deaguila worked as a delivery driver for PODS. On May 9, 2019, he fell in

loose gravel, injuring his right knee and arm.1 PODS later offered a panel of physicians,

and he chose Dr. Michael Wells.

Mr. Deaguila first saw Dr. Wells on July 12. Dr. Wells primarily focused on Mr.

Deaguila’s knee and determined he tore his meniscus. At the next appointment, Dr. Wells

examined his right wrist and shoulder, and he diagnosed a torn labrum in the shoulder. Dr.

Wells deferred shoulder surgery because Mr. Deaguila wanted some time for his shoulder

to “cool off.” Dr. Wells also referred him to Dr. Kent Lord for the wrist injury.2

1

Mr. Deaguila had significant pre-existing injuries to his right knee, shoulder, and wrist.

2

Dr. Wells restricted Mr. Deaguila from work as of October 29.

1

Dr. Wells continued to treat Mr. Deaguila’s knee and shoulder. He again

recommended shoulder surgery, but PODS did not authorize it. Dr. Wells later determined

that the fall exacerbated Mr. Deaguila’s shoulder condition but believed most of his

shoulder symptoms were related to pre-existing degenerative problems. He placed Mr.

Deaguila at maximum medical improvement regarding as to the shoulder on June 19, 2020.

As for the knee, Dr. Wells ultimately performed surgery and released Mr. Deaguila

at maximum medical improvement on June 19. He placed permanent restrictions of limited

weight-bearing and no crawling, stooping, or climbing.

As to the wrist, Dr. Lord initially treated it conservatively. Later, he recommended

a thumb CMC arthroplasty because he believed the fall aggravated pre-existing arthritis in

the CMC joint of the thumb. He determined that the fall was the primary cause of the

aggravation and Mr. Deaguila is not at maximum medical improvement. He set temporary

work restrictions of no use of the right hand.3 PODS did not approve the surgery, although

a peer review by Dr. Andrew Farber found it medically necessary.

Independent Medical Examinations

Both parties obtained independent medical evaluations, consulting with equally

qualified experts.

PODS obtained its evaluation from Dr. Leslie Whitman, who examined Mr.

Deaguila in September 2020. Dr. Whitman noted Mr. Deaguila’s significant past medical

history that included knee surgeries and a 2016 automobile accident in which he injured

the right side of his body.

Dr. Whitman determined Mr. Deaguila had arthritis because of his previous knee

surgeries and that Dr. Wells’s treatment was appropriate to address the aggravation.

However, he also determined that any lingering problems were due to the pre-existing

arthritis and not the 2019 work injury.

Concerning the shoulder, Dr. Whitman did not have access to a prior 2016 MRI. He

found that Mr. Deaguila did not have significant anatomic change within the shoulder, and

there was no need for further treatment.

Regarding the wrist and thumb, Dr. Whitman stated that Mr. Deaguila’s pain was

initially in the wrist, but Dr. Lord found the problem to be the CMC thumb joint. Dr.

Whitman felt Mr. Deaguila’s original wrist pain was not associated with the CMC joint

pain, which occurred later and involved two separate body parts. He felt that because the

injections Dr. Lord provided were not helpful, the CMC arthroplasty was not necessary.

3

PODS paid temporary disability benefits until September 24, 2020 but stopped them based on Dr.

Whitman’s IME opinion that Mr. Deaguila’s CMC problems were not work-related.

2

Mr. Deaguila obtained an evaluation from Dr. William Kennedy in February 2021.

Dr. Kennedy determined the fall at work was the primary cause of the torn meniscus and

worsening of the pre-existing arthritis. He felt that if Mr. Deaguila had undergone gradual

worsening of the knee before the fall at work, then he would have needed treatment before

the fall. But that did not occur, as he had worked without restrictions.

Concerning the shoulder, Dr. Kennedy felt the fall was the primary cause of the

worsened tearing in Mr. Deaguila’s glenoid labrum in his shoulder. He believed the

arthroscopic surgery recommended by Dr. Wells was medically necessary.

As for the right wrist, Dr. Kennedy determined that the problem was the CMC joint,

and the fall at work was the primary cause of the worsening and instability of the joint.

Mr. Deaguila’s testimony

Mr. Deaguila testified that he continues to have pain in his knee, shoulder, and

thumb. He said his knee pops and swells, that his shoulder has limited movement, and his

CMC joint is painful and must be braced. He further testified that although he had pre-

existing conditions, he was able to work without restrictions before the injury but has not

been able to obtain any work with his current restrictions.

Mr. Deaguila wanted continuing medical benefits for his injuries, including the

surgeries recommended by Dr. Wells and Dr. Lord. He also argued that he was not at

maximum medical improvement and is entitled to temporary partial disability benefits

because he cannot work. He further requested that the Court order PODS to pay his

attorney fees for wrongly terminating his benefits.

PODS argued that, at most, Mr. Deaguila aggravated pre-existing conditions, and

the aggravations have now resolved. PODS further argued that the CMC joint was not

injured in the fall, but that Mr. Deaguila merely sustained a wrist contusion. Finally, PODS

argued that Mr. Deaguila was not entitled to any additional medical benefits, and it was

entitled to a credit for overpaid temporary disability benefits.

Findings of Fact and Conclusions of Law

Mr. Deaguila must prove he is likely to prevail at a hearing on the merits. Tenn.

Code Ann. § 50-6-239(d)(1) (2021); McCord v. Advantage Human Resourcing, 2015 TN

Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Because Dr. Wells is Mr. Deaguila’s authorized physician, his causation opinion is

presumed correct, subject to rebuttal by a preponderance of the evidence. See Tenn. Code

Ann.§ 50-6-102(14)(E).

Dr. Wells concluded that Mr. Deaguila’s knee injury was primarily work related.

Nevertheless, PODS terminated Mr. Deaguila’s treatment for the knee, based on Dr.

Whitman’s opinion. Dr. Kennedy agreed with Dr. Wells that the fall exacerbated Mr.

3

Deaguila’s knee condition. The Court finds the opinions of Drs. Wells and Kennedy more

persuasive. The Court holds that Mr. Deaguila is likely to prevail at a hearing on the merits

in proving his knee injury is causally related to his work. He may return to Dr. Wells for

additional treatment.

Dr. Wells also stated that Mr. Deaguila exacerbated his pre-existing shoulder

condition, but his current shoulder complaints were not primarily work related. Dr.

Whitman shared this opinion. Dr. Kennedy disagreed, but instead felt Mr. Deaguila

aggravated his pre-existing condition, and that the aggravation was primarily related to the

work. Considering these opinions and presuming Dr. Wells is correct as required, the Court

holds Mr. Deaguila would not likely prevail at a hearing on the merits as to his shoulder

injury.

Dr. Lord provided a causation opinion on the CMC joint. Because Mr. Deaguila

did not choose Dr. Lord from a panel of physicians, the Court does not attach a presumption

of correctness to his opinion. Gilbert v. United Parcel Serv., Inc., 2019 TN Wrk. Comp.

App. Bd. LEXIS 20, at *13 (June 7, 2019). Dr. Lord stated that Mr. Deaguila’s fall

primarily caused the aggravation of his CMC joint condition and recommended surgery.

Dr. Whitman determined that Mr. Deaguila did not originally complain about the CMC

joint but the wrist, and therefore it was not related to the fall. However, Dr. Kennedy

agreed with Dr. Lord and noted that the wrist and CMC joint are close but separate issues,

and the fall aggravated his pre-existing CMC joint condition.

Based on this evidence, the Court finds that the opinions of Drs. Lord and Kennedy

outweigh that of Dr. Whitman concerning the CMC joint, and Mr. Deaguila is likely to

succeed at a hearing on the merits concerning the work relatedness of his CMC joint injury.

Therefore, PODS shall authorize and schedule the surgery with Dr. Lord.

The Court’s holding that Mr. Deaguila needs surgery, and the fact that he is under

work restrictions, lead to the issue of temporary disability benefits. An injured worker is

entitled to temporary partial disability benefits if the work injury prevents him from earning

his average weekly wage. Tenn. Code Ann. § 50-6-207(2). Here, Mr. Deaguila has been

unable to find work because of Dr. Lord’s restriction of no use of his right hand. Thus, the

Court holds that Mr. Deaguila is entitled to past temporary partial disability benefits from

the last date PODS paid benefits, September 20, 2020, through the present, a period of

sixty-three weeks and three days. Payments shall continue until he reaches maximum

medical improvement or is released from restrictions.

Finally, because PODS stopped his benefits, Mr. Deaguila requested attorney fees

for wrongful denial under Tennessee Code Annotated 50-6-226(d)(1)(B). Attorney fees

may be awarded at the interlocutory stage when “highly unusual circumstances” are

present, for example when an employer denies a claim based on its own interpretations of

the medical evidence, denies a claim without reasonably investigating it, ignores evidence

4

that favors the injured worker, or declines to reconsider a denial of a claim after new

evidence is provided. Travis v. Carter Express, Inc., 2019 TN Wrk. Comp. App. Bd.

LEXIS 25, at *14 (June 24, 2019); see also Thompson v. Comcast Corp., 2018 TN Wrk.

Comp. App. Bd. LEXIS 1, at *28-9 (Jan. 30, 2018). A denial of attorney fees at the

interlocutory stage of a case does not preclude an award of fees at the conclusion of the

case. Travis, at *13.

Here, the Court does not find the requisite “highly unusual circumstances” to award

fees at the interlocutory stage. However, the Court might reconsider the issue at the

conclusion of the case on proper motion.

IT IS, THEREFORE, ORDERED as follows:

1. PODS shall provide Mr. Deaguila with medical benefits under Tennessee Code

Annotated 50-6-204. He may return to Dr. Wells as needed, and PODS shall

schedule the surgery with Dr. Lord.

2. The Court denies Mr. Deaguila’s request for additional medical benefits related to

his shoulder at this time.

3. Mr. Deaguila is entitled to past temporary partial disability benefits in the amount

of $29,265.93, for the period of September 20, 2020, to the present, which represents

sixty-three weeks and three days.4 Payments shall continue until he reaches

maximum medical improvement or is released from restrictions.

4. This case is scheduled for a status hearing on Tuesday, January 11, 2022, at 10:00

a.m. Eastern Time. The parties must dial 855-543-5044 to participate. Failure to

call might result in a determination of the issues without your participation.

5. Unless interlocutory appeal of the Expedited Order is filed, compliance with this

Order must occur no later than seven business days from the date of entry of this

Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The

insurer or self-insured employer must submit confirmation of compliance with this

Order to the Bureau by email to WCCompliance.Program@tn.gov no later than

seven business days after entry of this Order. Failure to submit the necessary

confirmation within the period of compliance might result in a penalty assessment

for non-compliance. For questions regarding compliance, please contact the

Workers’ Compensation Compliance Unit via email at

WCCompliance.Program@tn.gov.

4

This amount was calculated using the stipulated weekly compensation rate of $461.40.

5

ENTERED December 8, 2021.

______________________________________

BRIAN K. ADDINGTON, JUDGE

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Enrique Deaguila’s Affidavit

2. Wage Statement

3. Stipulation of Compensation Rate

4. Independent Medical Examination Report of Dr. William Kennedy

5. Rule 72 Declaration Statement of Laureen Druker

6. Rule 72 Declaration Statement and Supplemental Statement of Kimberly Jenkins

7. Standard Form Medical Report of Dr. Kent J. Lord

8. Medical Record Table of Contents

9. Supplemental Medical Record Table of Contents

10. Notice of Filing Deposition Transcript of Dr. Leslie Whitman

11. Notice of Filing Deposition Transcript of Dr. William Kennedy

12. Peer Review by Dr. Andrew Farber of Dr. Lord

13. Peer Review by Dr. Christopher Dougherty of Dr. Wells.

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Scheduling Hearing

4. Status Order

5. Order Setting Expedited Hearing

6. Notice of Filing of Deposition Transcript of Dr. Leslie Whitman

7. Stipulation of Compensation Rate

8. Hearing Request

9. Agreed Order of Substitution

10. Employee’s Notice of Intent to Use Standard Form Medical Report of Treating

Physician Kent J. Lord, M.D.

11. Employer’s Witness List

12. Employers Position Statement and Table of Contents

13. PODS exhibit list

6

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent on December 8, 2021.

Name Certified Fax Email Service sent to:

Mail

Jacqulyn Jones and X jacqulyn@terry-lawfirm.com

Jeffrey Taylor, jeff@taylorlawfirmtn.com

Employee’s kathy@taylorlawfirmtn.com

Attorneys

Eric Shen, X eric.shen@libertymutual.com

Employer’s laura.johnson-peay@libertymutual.com

Attorney kimberly.jenkins@libertymutual.com

______________________________________

PENNY SHRUM, COURT CLERK

wc.courtclerk@tn.gov

7

Expedited Hearing Order Right to Appeal:

If you disagree with this Expedited Hearing Order, you may appeal to the Workers’

Compensation Appeals Board. To appeal an expedited hearing order, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the

Clerk of the Court of Workers’ Compensation Claims within seven business days of the

date the expedited hearing order was filed. When filing the Notice of Appeal, you must

serve a copy upon all parties.

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten

calendar days after filing of the Notice of Appeal. Payments can be made in-person at

any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the

alternative, you may file an Affidavit of Indigency (form available on the Bureau’s

website or any Bureau office) seeking a waiver of the fee. You must file the fully-

completed Affidavit of Indigency within ten calendar days of filing the Notice of

Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will

result in dismissal of the appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request

from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of

the proceedings is to be filed, a licensed court reporter must prepare the transcript and file

it with the court clerk within ten business days of the filing the Notice of

Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both

parties within ten business days of the filing of the Notice of Appeal. The statement of

the evidence must convey a complete and accurate account of the hearing. The Workers’

Compensation Judge must approve the statement before the record is submitted to the

Appeals Board. If the Appeals Board is called upon to review testimony or other proof

concerning factual matters, the absence of a transcript or statement of the evidence can be

a significant obstacle to meaningful appellate review.

4. If you wish to file a position statement, you must file it with the court clerk within ten

business days after the deadline to file a transcript or statement of the evidence. The

party opposing the appeal may file a response with the court clerk within ten business

days after you file your position statement. All position statements should include: (1) a

statement summarizing the facts of the case from the evidence admitted during the

expedited hearing; (2) a statement summarizing the disposition of the case as a result of

the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an

argument, citing appropriate statutes, case law, or other authority.

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-

stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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